The Sound of Silence: How Congressional Acquiescence is Expanding Independent Presidential War Powers

by Emmy Blane, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

In February of 2025, the United States Department of State formally designated eight Latin American drug cartels as Foreign Terrorist Organizations and Specially Designated Global Terrorists.¹ In August, the Trump Administration deployed approximately 6,000 U.S. Navy sailors and Marines on three amphibious assault ships and two United States Navy vessels to the Caribbean Sea to combat the drug cartels.² On September 2, 2025, eleven people were killed when the United States carried out its first strike on a vessel, which had departed from Venezuela and was allegedly operated by the Tren de Aragua cartel.³ As of November 13, the United States has conducted twenty known airstrikes on vessels in the Caribbean Sea and Pacific Ocean, resulting in eighty total casualties.⁴

While the strikes certainly have international law implications, this Article focuses on the constitutionality of the President’s unilateral decision to initiate U.S. military forces into hostilities without congressional approval. Part II explains the constitutional doctrines governing the Separation of Powers and the President’s and Congress’s respective war powers. Part II also discusses the communications between the President and Congress subsequent to the President’s directive for military forces to conduct strikes against the vessels. Next, Part III applies the doctrines to the military strikes on vessels in the Caribbean Sea and Pacific Ocean. Finally, Part IV notes the importance of this moment and argues that Congress’s failure to terminate the use of military force will significantly expand independent presidential war powers.

II. Background

A. Separation of Powers

In establishing a federal government in which the powers are distributed between three separate and distinct branches, the Framers of the Constitution had two related goals in mind: to prevent tyranny, or consolidation of power in one branch of government, and to preserve individual liberty.⁵ The Framers contemplated that in order to effectuate and maintain this system of governance, the branches should be interdependent as to keep each other in their proper constitutional places and resist encroachment – a concept commonly known as Checks and Balances.⁶ Federalist Paper Number 51 famously elaborated on this idea:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself…where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”⁷

B. Separation of War Powers

Article I of the Constitution grants Congress the power to declare war, while Article II empowers the president as the Commander in Chief of the military and vests the Executive Power in the president.⁸ Those in favor of a “Unitary Executive” theorize that the Vesting Clause is a source of extensive power that the president alone enjoys, and thus limits Congress’s ability to affect the Executive Branch’s operations.⁹ Article II also empowers the president to “take care that the laws be faithfully executed.”¹⁰ Additionally, the Constitution grants different foreign relations powers to both the president and Congress, but it does not allocate all of the foreign relations powers necessary to operate on the world stage.¹¹ Therefore, implicit powers in foreign relations are interpreted from existing constitutional language involving foreign affairs and other Article I and II powers.¹² Since September 11, 2001, presidents have acquired greater foreign relations power through the Executive’s Article II powers and access to top intelligence and swift military communication not available to Congress.¹³

While the scope of the president’s war powers has been debated throughout history, the Trump Administration has expressed that the combination of the Commander in Chief power, the Vesting Clause, the Take Care Clause, and historical deference to the president in foreign relations establishes constitutional authority for the president to deploy military forces without prior congressional authorization.¹⁴

At the 1787 Philadelphia Convention, the Framers of the Constitution discussed that Congress’s power to declare war leaves the president with authority to repel sudden attacks without prior congressional approval.¹⁵ Generally, the Judicial Branch does not hear cases involving the president or Congress’s war-making decisions as these are largely political questions, and courts do not want to disrupt the functionality of war decisions.¹⁶ This means that Congress is the strongest check on the president’s exercise of war powers and military decisions.¹⁷

In response to the Vietnam War, Congress passed the War Powers Resolution of 1973 (“WPR”) which embodies the theory that Congress possesses primary authority to deploy the military into hostilities.¹⁸ The WPR states that the president’s constitutional powers to engage the military in hostilities as Commander in Chief are limited to the following situations: (a) Congressional declaration of war; (b) specific congressional statutory authorization; or (c) a national emergency due to an attack on the United States, its territories or possessions, or its armed forces.¹⁹

The WPR also requires the president to consult Congress “in every possible instance” before introducing the military into hostilities and to regularly consult with Congress thereafter until the hostilities are resolved or the military is removed from the situation.²⁰ If Congress has not declared war, the president must provide a written report to Congress within forty-eight hours of the military’s introduction into hostilities, foreign territories, waters, or airspaces while equipped for combat.²¹ Within sixty days of the president’s report, or duty to report, the president must terminate the use of the military in the reported situation unless Congress has declared war or specifically authorized the military engagement, extended the sixty-day period by law, or is unable to meet due to an armed attack on the United States.²² Finally, the WPR dictates that any time the military is engaged in hostilities outside of the territory of the United States without a declaration of war or specific statutory authorization, the president must remove the military from such situations if Congress so directs by a concurrent resolution.²³

While Congress did not define “hostilities” in the legislation, the legislative history states:

“The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Imminent hostilities” denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict.”²⁴

Therefore, the legislative history reveals that Congress intended to establish a broad scope of presidential military directives, not strictly bona fide armed conflicts, that are subject to the WPR’s reporting and congressional removal provisions.²⁵

The Authorization for Use of Military Force (“AUMF”), a joint resolution that Congress passed after the September 11, 2001, terrorist attacks, is an example of specific statutory authorization consistent with the WPR.²⁶ The AUMF allowed the President to use all “necessary and appropriate” force against any person, group, or nation involved in the September 11, 2001, terrorist attacks.²⁷

Despite the congressional authority outlined in the WPR, presidents have commonly relied on their Commander in Chief status to bolster the view that they have strong independent authority to initiate war-related decisions.²⁸ For example, the tension between congressional and presidential war powers was illustrated in 2013 when Congress declined President Obama’s request for authorization to conduct air strikes in Syria.²⁹ Out of deference to Congress’s decision, President Obama did not carry out the strikes, but he still expressed his view of strong Executive war powers: “[E]ven though I possess the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress.”³⁰

Additionally, after President Trump directed airstrikes on Syrian chemical weapons facilities in 2018, his Office of Legal Counsel (“OLC”) drafted a memorandum describing the Trump Administration’s view that the President enjoyed independent power to initiate military forces.³¹ The OLC stated that historically, even after the WPR’s passage, the Executive Branch has introduced military forces into hostilities without prior congressional authorization and Congress has acquiesced or ratified the President’s use of the military.³²

C. Communication Between President and Congress Regarding Military Strikes

On September 4, 2025, President Trump informed Congress “as part of [his] efforts to keep the Congress fully informed, consistent with the War Powers Resolution” that on September 2, 2025, he directed a military strike on a vessel in the Caribbean Sea that was “assessed to be affiliated with a designated terrorist organization and to be engaged in illicit drug trafficking activities.”³³ He added that it was not possible to ascertain the “full scope and duration of military operations that will be necessary” and that “United States forces remain postured to carry out further military operations.”³⁴ At the time of the September 4 report, the sixty-day clock began ticking pursuant to the WPR’s timing requirement, establishing a November 3 deadline.³⁵

In early October 2025, roughly one month after the initial strike, President Trump provided confidential notice to Congress that the United States is engaged in an “armed conflict” with drug cartels and declared that those suspected of smuggling drugs are “unlawful combatants.”³⁶ The notice stated that the cartels are “nonstate armed groups” whose actions “constitute an armed attack against the United States” and argued that the use of deadly force is warranted because the cartels pose an imminent threat to the United States.³⁷ In late October, lawmakers requested that the Trump Administration provide intelligence on the lethal military strikes and their targets because, without further details, Congress could not assess the administration’s decision that the cartels pose an imminent threat that warrants military force rather than law enforcement.³⁸ In response, President Trump stated that his administration would brief Congress on the strikes, but added, “I don’t think we’re going to necessarily ask for a declaration of war. I think we’re just going to kill people that are bringing drugs into our country.”³⁹.

In the last week of October, days before the November 3 deadline, the Trump Administration’s OLC declared to Congress that the lethal airstrikes on boats at sea did not constitute “hostilities” covered by the WPR.⁴⁰ The OLC argued that the WPR “has been understood to apply to placing U.S. service members in harm’s way” and that the airstrikes are conducted by unmanned drones far from Navy ships carrying U.S. service members.⁴¹

In 2011, President Obama expressed a similar argument in regard to NATO-led military intervention in Libya, which included airstrikes.⁴² The administration argued that four factors demonstrated that the military intervention in Libya did not rise to the level of “hostilities” subject to the sixty-day time limit under the WPR: (1) the mission was limited to a supporting role for NATO; (2) the exposure of the armed forces was limited because of the absence of U.S. ground troops; (3) the risk of escalation was limited; and 4) the military means used were limited to airstrikes on an as-needed basis to suppress enemy air defenses and to support the civilian protection mission.⁴³ The administration’s argument faced significant opposition from several members of Congress––who are current Senators or Cabinet members––who expressed their disapproval of the conclusion that the operations did not constitute “hostilities” and/or voted for legislation that would have directed the President to terminate the operations pursuant to the WPR’s time limit, had the legislation passed in the House.⁴⁴

III. Discussion

As President Trump is not seeking a declaration of war and Congress has not passed specific statutory authorization for the strikes, the Trump Administration’s declaration that drug cartels are “nonstate armed groups” whose actions “constitute an armed attack” against and “imminent threat” to the United States appeared as an attempt to place the actions within the WPR’s enumeration of presidential power to introduce the military into hostilities.⁴⁵ This characterization is perhaps most analogous to the conflict with post-9/11 terrorist organizations against whom Congress authorized the President to initiate military hostilities.⁴⁶ However, in that situation, Al-Qaeda had declared war against the United States, attacking and killing thousands of Americans.⁴⁷ While President Trump asserts that drug cartels are responsible for the deaths of tens of thousands of Americans per year, the administration has not yet provided intelligence or a legal basis that the cartels are waging war against the United States.⁴⁸ Also, Congress has not specifically authorized the use of military force against drug cartels as it did post-9/11 via the AUMF.⁴⁹

A proposed resolution to prevent the military from engaging in hostilities with “any non-state organization engaged in the promotion, trafficking, and distribution of illegal drugs and other related activities” without explicit congressional authorization was struck down in the Senate.⁵⁰ Because Congress did not declare war or grant specific authorization for the airstrikes, the sixty-day time limit on the use of military forces expired on November 3, 2025.⁵¹ However, the Trump Administration’s OLC declaration that the airstrikes do not constitute “hostilities” under the WPR must be reckoned with because it determines whether the sixty-day time limit applies at all.

Clearly, President Trump initially thought that the airstrikes did fall under the WPR because he provided Congress with the forty-eight-hour notice and even stated that he was doing so to comply with the WPR notice requirement.⁵² It was not until the November 3 deadline was days away that his administration changed course to try to circumvent Congress’s authority altogether.⁵³ Returning to the legislative history of the WPR, which provides that Congress chose the word “hostilities” because it was broader in scope than “armed conflicts” where shots were fired, it is clear that Congress intended for more, rather than fewer, military actions to fall under Congress’s WPR powers.⁵⁴ It is inconceivable that military operations which the President himself announced constituted an “armed conflict” with drug cartels who were “unlawful combatants” engaged in an “armed attack” that posed an “imminent threat” against the United States would not fall within the scope Congress intended when it drafted the WPR.⁵⁵

Congress’s failure to terminate the deployment of military forces during the sixty-day window––although it did not receive sufficient intelligence evidencing the legal basis for the military strikes––already represents a stark expansion of presidential war power by allowing the President to utilize lethal force against an unprecedented category of persons, e.g. drug cartels, whom the President unilaterally deems the United States’ enemies.⁵⁶ Now, if Congress does not pass legislation condemning the OLC’s stance that the airstrikes do not constitute hostilities, it will stamp in history the precedent that presidents have independent power to direct deadly airstrikes without even so much as sharing intelligence with Congress justifying the necessity of lethal force.

Why does this matter? In the immediate, it matters because the Trump Administration can continue killing people at sea with no accountability or time limit while Congress and the American people do not even know the names of the deceased. How far will it go? In the long term, it matters because the Executive Branch is accumulating greater power over the use of military force which the Constitution and WPR grant to Congress.⁵⁷ Today, it is airstrikes on vessels allegedly carrying drugs in the Caribbean Sea, but tomorrow it may be strikes on drug labs and cartel members on foreign land, or even U.S. troops on the ground to conduct the strikes.⁵⁸ Likely jeopardizing diplomatic relations with leaders in targeted countries, the President’s unchecked directive of military force threatens to involve the United States in conflicts far greater than isolated strikes.⁵⁹

If Congress does not speak up now, the current, and future presidents could rationalize bypassing Congress in a wide range of military operations by arguing that they fall outside of the “hostilities” described in the WPR and, thus, are exclusively within the Executive’s power. Even more, if Congress acquiesces to the President’s current argument that the airstrikes do not constitute hostilities, and a future Congress does pass legislation terminating military operations pursuant to the WPR, presidents may ignore it, citing the 2025 airstrikes as a source of unilateral presidential power to decide which military actions fall within the WPR, effectively rendering the WPR defective as a limitation on presidential war powers.⁶⁰

IV. Conclusion

While people are being killed at sea as a result of Executive ordered airstrikes, White House officials have not briefed the entire Congress, and Trump Administration lawyers have not provided Congress with a legal justification for the strikes.⁶¹ At the same time, Congress has not passed legislation terminating the use of military force.⁶² To avoid a significant expansion of unilateral presidential war powers and an erosion of the Separation of Powers in this area, Congress should pass legislation terminating the airstrikes, condemning the President’s assertion that the airstrikes do not constitute “hostilities” under the WPR, and even codify a more specific definition of “hostilities.” If Congress allows the current moment to pass it by, its silence will establish the precedent for future presidents to expand their war powers while diminishing Congress’s constitutional powers to check the president’s initiation of military force.

This is not an abstract risk or a political game. It is the risk that the current and future presidents could introduce United States service members into conflicts while Congress and the American people have no power to hold the Executive accountable. At this juncture, Congress should uphold the Framers’ vision that the Separation of Powers is a mechanism not only for the government to control the governed, but for the government to control itself.

All eyes are on Congress.

Cover Photo by Tara Winstead on Pexels

Emmy Blane

References

1
Designation of International Cartels, U.S. Dep’t of State: Office of the Spokesperson (February 20, 2025), https://www.state.gov/designation-of-international-cartels [https://perma.cc/X5MT-ZHXH].
2
Ben Finley & Konstantin Toropin, A timeline of U.S. military strikes on boats off South America and what Congress has said, PBS News (Oct. 23, 2025), https://www.pbs.org/newshour/world/a-timeline-of-u-s-military-strikes-on-boats-off-south-america-and-what-congress-has-said [https://perma.cc/J28P-JRGV].
3
Id.
4
Lazaro Gamio, Carol Rosenberg & Charlie Savage, Tracking U.S. Military Killings in Boat Attacks, N.Y. Times (Nov. 13, 2025), https://www.nytimes.com/interactive/2025/10/29/us/us-caribbean-pacific-boat-strikes.html [https://perma.cc/8GSL-JVCK].
5
Mark C. Alexander et al., Learning Constitutional Law: Powers, Structure, and the Fourteenth Amendment 328–29 (2024).
6
Id. at 330.
7
The Federalist No. 51 (Alexander Hamilton or James Madison).
8
U.S. Const. art. I, § 8, cl. 11; art. II, § 2, cl. 1; art. II, § 1, cl. 1.
9
Alexander et al., supra note 5, at 332.
10
U.S. Const. art. II, § 3, cl. 3.
11
Alexander et al., supra note 5, at 365–66.
12
Id.
13
Jonathan Masters, U.S. Foreign Powers: Congress and the President, Council on Foreign Rel. (Mar. 2017), https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president [https://perma.cc/3XZM-TXXH].
14
April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. 41–44 (2018).
15
Michael D. Ramsey & Stephen I. Vladeck, Declare War Clause, Nat’l Const. Ctr., https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753 [https://perma.cc/P5KR-QGCX] (last visited Nov. 18, 2025).
16
See Stephen M. Griffin & Matthew C. Waxman, War Powers: Congress, the President, and the Courts – A Model Casebook Section, Columbia Pub. L. Rsch. at 1 (2020).
17
Matthew C. Waxman, Armed Conflict? Trump’s Venezuela Boat Strikes Test U.S. Law, Council on Foreign Rel. (Oct. 15, 2025), https://www.cfr.org/expert-brief/armed-conflict-trumps-venezuela-boat-strikes-test-us-law [https://perma.cc/J5WX-KHG3].
18
Alexander et al., supra note 5, at 398.
19
50 U.S.C. § 1541(c) (1973).
20
50 U.S.C. § 1542 (1973).
21
50 U.S.C. § 1543(a) (1973).
22
50 U.S.C. § 1544(b) (1973).
23
50 U.S.C. § 1544(c) (1973). Concurrent resolutions are measures adopted by Congress that are not presented to the president. In Immigration and Naturalization Service v. Chadha (1983), the Supreme Court held that Congress cannot make laws unless they are presented to the president. Therefore, concurrent resolutions passed under § 1544(c) likely lack the force of law, but a concurrent resolution calling for the withdrawal of military forces would still express Congress’s will to prevent the president from encroaching on its constitutional war powers. Alexander et al., supra note 5, at 411.
24
H.R. Rep. No. 93-547, at 2351 (1973).
25
Brian Finucane, Dissecting the Trump Administration’s Effort to Circumvent the War Powers Resolution for Boat Strikes, Just Security (Nov. 3, 2025), https://www.justsecurity.org/123844/war-powers-resolution-venezuela-boat-strikes/ [https://perma.cc/7MW5-5H2H].
26
50 U.S.C. § 1541 (2001).
27
Id.
28
Alexander, et al., supra note 5, at 396–97.
29
Stephen M. Griffin & Matthew C. Waxman, War Powers: Congress, the President, and the Courts – A Model Casebook Section, Columbia Pub. L. Rsch. at 19 (2020).
30
Id.; id. at n.12.
31
April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. 39 (2018).
32
Id. at 45.
33
Letter from President Donald J. Trump to Charles Grassley, President pro tempore of the Senate (Sept. 4, 2025) https://static01.nyt.com/newsgraphics/documenttools/8616481a85b02a2c/b05f64ca-full.pdf [https://perma.cc/D6N3-9Y8J].
34
Id.
35
50 U.S.C. § 1544(b) (1973).
36
Charlie Savage & Eric Schmitt, Trump ‘Determined’ the U.S. Is Now in a War With Drug Cartels, Congress Is Told, N.Y. Times (Oct. 2, 2025), https://www.nytimes.com/2025/10/02/us/politics/trump-drug-cartels-war.html [https://perma.cc/Q5YZ-T9SW].
37
Id.; Natasha Bertrand & Zachary Cohen, Exclusive: Classified Justice Department opinion authorizes strikes on secret list of cartels, sources say, CNN Politics (Oct. 7, 2025), https://www.cnn.com/2025/10/06/politics/classified-justice-department-memo-cartel-strikes [https://perma.cc/54PL-NAAB].
38
Eric Schmitt, Lawmaker Demands Hearing on U.S. Strikes on Boats in Caribbean, N.Y. Times (Oct. 20, 2025), https://www.nytimes.com/2025/10/20/us/politics/congress-boat-strikes-caribbean.html [https://perma.cc/P2DT-F5XK].
39
Associated Press, Lawmakers will be briefed on vessel strikes, PBS News (Oct. 23, 2025), https://www.pbs.org/newshour/politics/watch-live-trump-makes-announcement-on-human-trafficking-during-white-house-briefing
40
Charlie Savage & Julian E. Barnes, War Powers Law Does Not Apply to Trump’s Boat Strikes, Administration Says, N.Y. Times (Nov. 1, 2025), https://www.nytimes.com/2025/11/01/us/politics/trump-boat-attacks-war-powers.html?smid=url-share [https://perma.cc/KA93-E3BZ].
41
Id.
42
On Libya and War Powers: Hearing Before the S. Foreign Relations Comm., 112th Cong. (2011) (testimony of Harold Hongju Koh, Legal Adviser U.S. Dep’t of State).
43
Id. at 7-11.
44
Finucane, supra note 25; H.R. Con. Res. 51, 112th Cong. (2011).
45
Savage & Schmitt, supra note 36.
46
Waxman, supra note 17.
47
Id.
48
Savage & Schmitt, supra note 36.
49
Id.; 50 U.S.C. § 1541 (2001).
50
S.J. Res. 83, 119th Cong. (2025).
51
50 U.S.C. § 1544(b) (1973); Letter from President Donald J. Trump to Charles Grassley, supra note 33.
52
Letter from President Donald J. Trump to Charles Grassley, supra note 33.
53
Savage & Barnes, supra note 40.
54
H.R. Rep. No. 93-547 at 2351 (1973).
55
Savage & Schmitt, supra note 36.
56
Waxman, supra note 17.
57
U.S. Const. art. I, § 8, cl. 11; 50 U.S.C. § 1542 (1973).
58
Courtney Kube, Dan De Luce & Gordon Lubold, Trump administration is planning new mission in Mexico against cartels, current and former U.S. officials say, NBC News (Nov. 3, 2025), https://www.nbcnews.com/politics/national-security/trump-administration-planning-new-mission-mexico-cartels-current-forme-rcna241167 [https://perma.cc/ZD5R-URNM].
59
Id. Mexican President Claudia Sheinbaum stated at a news conference that Mexico rejected any “intervention or interference” from the United States––that the country would “coordinate and collaborate,” but it will not “subordinate itself” to the United States. Id.
60
Finucane, supra note 25.
61
Filip Timotija, Rubio, Hegseth boat strike briefing doesn’t quell Democrats’ concerns, The Hill (Nov. 5, 2025), https://thehill.com/homenews/5592319-us-military-drug-trafficking-strikes/ [https://perma.cc/S5VQ-6D92]; Leo Shane III, DOD can’t say who it killed in military strikes against drug smugglers, Politico (Oct. 30, 2025), https://www.politico.com/news/2025/10/30/dod-military-strikes-drug-smugglers-00630267 [https://perma.cc/7BDQ-UARF].
62
S.J. Res. 83, 119th Cong. (2025).